Blackburn et al. v. Chilliwack Gravel Sales Ltd. Date:, 2014 BCPC 341

Citation: Blackburn et al. v. Chilliwack Gravel Sales Ltd. Date: 20141212 2014 BCPC 0341 File No: C07781 Registry: Chilliwack IN THE PROVINCIAL COURT OF BRITISH COLUMBIA BETWEEN: BRAD BLACKBURN AND BLACKBURN TRUCKING LTD. CLAIMANTS AND: CHILLIWACK GRAVEL SALES LTD. DEFENDANT ORAL REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE W.G. MACDONALD Counsel for the Claimants: N. Mulholland Counsel for the Defendant: P. Thornton Place of Hearing: Chilliwack , B.C. Date of Hearing: December 12, 2014 Date of Judgment: December 12, 2014 [ 1 ] THE COURT: In the case at bar, Blackburn Trucking Ltd. is the claimant, and Chilliwack Gravel Sales Ltd. is the

defendant. The facts in the case are frankly relatively simple and straightforward. [ 2 ] There are certainly some differences in the evidence I have heard from the claimant and its witnesses, compared to evidence from the defendant and its witnesses. I can say that in general I did not find any witness before the Court to be particularly deceptive or deceitful. [ 3 ] I did find that there was likely some exaggeration or minimization by those parties that are most closely affected and would have an interest in the case.

Some of the witnesses were clearly more independent in that they do not have anything to gain or lose particularly by giving evidence and in those cases I really found that their evidence was straightforward and given appropriately. [ 4 ] I take into account that this incident is two and a-half years ago, that virtually nobody made any notes of the conversation that took place and therefore when one tries to recall the exact words that were said, I am sure it is difficult and it may well be in one party's interests to think they heard something they did not hear because it helps their case and that sort of thing likely occurred in this case, but frankly the case does not turn on that. [ 5 ] I start by saying that the claimant in any civil case has the burden of proof upon them to prove the case on the balance of probabilities, that is, that what they are alleging is more likely than not.

They have to tip the scale. If the scale is not tipped and at the end of the day, the Court cannot determine whether a certain fact occurred or did not occur, then the claimant would lose on that issue over that fact because the burden is always on them to prove the case. [ 6 ] The burden is not like a criminal case where you have to prove beyond a reasonable doubt that something happened, but you have to say "More likely than not, this is the way this happened and for these reasons I deserve compensation." [ 7 ] Many of the facts as pointed out by counsel are not in dispute.

The ones that are not in dispute I will comment on and the ones that are in dispute I will comment on where I think they are relevant. Not all of the evidence I heard I found relevant to the proceedings. [ 8 ] The basic fact that we start from is that on the 21st of March 2012, the claimant Mr. Brad Blackburn purchased the vehicle in question from Ritchie Bros. Auctions. The vehicle is a Volvo E-35 articulating truck and it is designed as I understand it to carry presumably rocks but it could probably carry any heavy load.

It is a dump truck and it is a piece of very heavy equipment intended to be used in the claimant's business which was a combination of a kind of logging, road building, working in the bush, and places where he would be required to move heavy loads. That is what he intended to do. [ 9 ] At the time of these incidents, he was working in logging operations and road building operations up on the West Harrison Forestry Service Road and that was his intention as to where he was going to use this piece of equipment. He did not have the equipment inspected by a mechanic prior to taking the vehicle into his possession.

I am told that Ritchie Bros. allows him to do that had he chose to do it. [ 10 ] Ritchie Bros. sells the vehicle in an "as is" condition with no warranty and people who buy at auctions understand that, so having the vehicle inspected first would seem to be a wise thing to do. [ 11 ] In this particular case, having heard the experts, I am not sure that the problems that this vehicle had would be detectable by an inspector who did have a look at the vehicle.

It is possible maybe taking oil samples or something else may have determined that there was a pre-existing crankshaft problem but I am uncertain of that on the evidence. [ 12 ] So while I am somewhat critical of Mr. Blackburn for not having the vehicle inspected prior to purchase, I am not sure it would have made a difference.

He was certainly knowledgeable about heavy-duty equipment; he had been in the business for many years; he considered himself somewhat of a mechanic although not certified capable of making certain repairs; he did do certain things with the vehicle before he bought it and took it from the Ritchie Bros. yard.

He started it up; he ran it for 20 minutes; he examined fluid levels; he examined brakes and things of that nature, and he thought he knew what he was buying. [ 13 ] In any event, he paid $26,978 for this Volvo E-35 articulating dump truck and he arranged to have the vehicle taken from the Ritchie Bros. yard to his site on Harrison Forestry Road at kilometre 3.5. How he did it is a little convoluted, but one of the things he found was that the vehicle needed some tires and those tires were going to cost $9,500 or so he thought.

But he had also purchased another piece of equipment at that same auction and as it turned out, he traded that equipment to Kal Tire for tires. [ 14 ] I gather both parties, Kal Tire and Mr. Blackburn, were of the opinion that the piece of equipment that he gave them was worth a little bit more than the value of the tires, so as part of the deal Mr. Meester (phonetic) at Kal Tire agreed, presumably with the approval of his boss, that Kal Tire would actually arrange for and pay for this truck to be low-bedded to the 3.5 kilometre site.

So that would even up the money so that it was a fair exchange for the piece of equipment that Mr. Blackburn traded. [ 15 ] So as a result of that, the contract that was entered into -- which was an oral contract with Chilliwack Gravel Sales Ltd. who is the defendant in this matter -- was actually entered into with Mr. Meester who is an employee of Kal Tire and not with Mr. Blackburn.

That becomes somewhat important in that the claimant as part of his claim alleges firstly that there was a breach of contract, so there had to be a contract in the first place, and secondly claims in negligence. [ 16 ] With respect to the technical terms of the contract, it would clearly seem that Mr. Blackburn was not a party to the contract, but it also would appear that Mr. Meester in hiring Chilliwack Gravel Sales Ltd. to do the transport was really acting as an agent for Mr. Blackburn.

It is clear he told them that he was doing this for a client. [ 17 ] I think the defendant knew for example that this truck did not belong to Kal Tire or to Mr. Meester and that they were arranging this on behalf of somebody else. They may or may not have known Mr. Blackburn's name at that point in time. They did find out about it before they actually delivered it because the driver was told to phone Mr. Blackburn, that he was the owner and he was going to meet them, so at some point they became aware of it.

[ 18 ] There was never any written contract entered into. This is a relatively simple transaction. The price was $500.00, not a lot of money, and it was basically to be done later that day which they did. [ 19 ] So on April 9th, 2012 Mr. Meester on behalf of Mr. Blackburn attends the property of the defendant, he speaks to Brad Bassett who is the owner/operator of the defendant company and he tells him basically what he wants, but Mr. Bassett says, "Look don't bother me with the details, there's our truck driver out there, Mr. Bob Stobbe," who had just driven in the yard.

He said, "Go tell him what you want" and he did. So Mr. Meester goes out into the yard he has a brief discussion with the driver Bob Stobbe and he tells him basically what he wants and Mr. Stobbe seems to understand and agrees to deliver this product. [ 20 ] Now, the exact nature of the contract and what the terms were is certainly in doubt and is in conflict and that is because Mr. Blackburn says, "I told Mr.

Meester that I wanted this vehicle low-bedded right to the 3.5 kilometre site and I didn't want it driven." [ 21 ] I am not sure why he would say that particularly because as far as he knew at that point, he thought the truck was in pretty good condition; that is why he bought it. He checked it out as much as he could on his own and it was not overheating, the gauges were working fine, it was not knocking, it was driving fine around the yard at Ritchie Bros., so he would not have any real concern.

It is not as if he knew that there was some frailty involved in this vehicle that "Gee, if you drive it, you're going to wreck it" or something like that. If he did know that it would be more reason for him to say to Mr. Meester, "You make sure that this fellow doesn't drive that vehicle." I think a lot of that is frankly hindsight rather than foresight at the time. [ 22 ] In any event, Mr. Meester seems to get the message and he gives evidence that three times he told Mr. Stobbe, "Look, don't drive it. You can't drive the vehicle.

I want you to low-bed it right to the site at the 3.5 kilometre mark." [ 23 ] On that exact point, Mr. Stobbe is totally in conflict. He says, "I was never told that. I was told to deliver it to the 3.5 kilometre site," and had he been told he said to low-bed it to that site and not to drive it, he would have done that and frankly, I see no reason why he would not have done that if he was told, "These are your precise instructions. You have to do this." It is not like what he did was somehow cheaper, easier, or faster than driving on the low-bed all the way to the site and simply driving the truck off.

So he really had no motive to deviate from the terms of the contract, if those were the terms. [ 24 ] At the end of the day frankly I am unable to determine whether Mr. Meester did tell him "You cannot drive the vehicle and you have to low-bed it right to the site" or if Mr. Stobbe is correct in his recollection. [ 25 ] Everybody is trying to remember what happened at that time two and a-half years ago, not an easy thing to do, and there clearly are motivations to either minimize or exaggerate. From Mr.

Stobbe's point of view, he recognizes that it looks better for him and his boss if there were no specific instructions to low-bed right to the site and that he had not deviated from those instructions. From Mr. Meester's perspective, he had an extremely angry client, Mr. Blackburn, who allegedly had told him what to communicate to the defendant company. It was in Mr.

Meester's best interests to recall things in favour of the person that hired him to do that especially knowing what then happened, that as a result of driving it, there was a bunch of damage it would appear caused to the vehicle. [ 26 ] So both parties have motive to exaggerate or minimize and I am really unable to say whether or not there was a firm contract to low-bed it right to the site. At the end of the day frankly it does not make any difference for reasons I will get to, but that is an issue in which the onus is on the claimant to prove that element of the contract.

I find that the claimant has failed to prove that element of the contract, namely, that it was an express term of the contract that he not drive the vehicle and that he low-bed it right to the site. [ 27 ] What actually happens is Mr. Stobbe drives toward the site, he loads the vehicle, and he drives it. It is understood by Mr. Blackburn that he is going to have to drive it onto the low-bed and drive it off of the low-bed, so starting the vehicle, getting in it and driving it was okay at least for that purpose. So again, I find that is logical that Mr.

Blackburn did not anticipate that he was going to have some catastrophic failure with the vehicle. He felt that it drove fine, he had already driven it and listened to it and so driving it on and off the low-bed would not be a big deal. So he did drive it on the low-bed. [ 28 ] When he was driving over, Mr. Stobbe said he made the decision that he was not going to low-bed it all the way up to the 3.5 kilometre mark and he gave a couple of reasons.

He said that there is often debris and rocks and fire rings and things like that in that area, that he had slashed a tire in there on an earlier occasion when turning around a low-bed in the widened area at kilometre 3.5 and therefore he decided to drop off the vehicle at kilometre 0, the bottom of the hill, and then drive the vehicle up the hill to kilometre 3.5. [ 29 ] He claims that he phoned to Mr.

Blackburn on the way and he told him what he was going to do and he asked him if the vehicle was fuelled and if it was ready to work and he said he got a confirmation that it was fuelled and ready to go to work so he had no particular reason to believe that the vehicle was going to fail for some reason driving up three and a-half kilometres to the site. [ 30 ] So he unloads the vehicle which he is permitted to do even under the strictest terms of the contract, starts up the hill, and unfortunately he only makes it about three-quarters of a kilometre up the hill when the vehicle starts to knock and Mr.

Stobbe it would appear immediately pulled the vehicle over and shut it off. The vehicle it would appear suffered a failure to the crankshaft area and loud knocking. [ 31 ] I am satisfied from all of the mechanical evidence, the condition of the truck, what happened to it before the auction, the repairs after the auction, and the expert report that this was a failure to the crankshaft area of the lower part of the engine. There is really no doubt about that.

There was no failure to any other part of the engine and it was a recurrence of a problem that the vehicle had prior to it going into the auction. [ 32 ] So it did fail. I accept Mr. Stobbe's evidence that he pulled it over to the side and turned it off. He then got a ride on a logging truck that he had previously arranged to go back down the hill to his low-bed because he knew this vehicle was not going anywhere and would have to be low-bedded. [ 33 ] When he got on the logging truck that truck engine was running when he phoned Mr. Blackburn to tell him that his truck had broken down. Mr.

Blackburn for his part says in evidence, "I could hear this noisy engine and a comment that my truck had broken

down and that it was knocking" and Mr. Blackburn said, "I told him, for God's sake turn it off." [ 34 ] Well, it turns out he was not really listening to that truck, he was listening to the logging truck in which Mr. Stobbe rode back down to his low-bed. That is the way I find it occurred rather than that he was sitting there still running the engine. It does not take anybody with great mechanical knowledge or experience to realize that once the engine goes from sounding good to starting to bang, bang, bang loudly knocking that you shut it off and you do not drive it. Mr.

Stobbe it would appear was a very experienced driver with years and years of experience and I have no doubt that he did not continue to drive it after it started knocking. So his story about how this all took place and where the cell phone call was made from and all of that makes sense. I accept his version of that. [ 35 ] When Mr. Blackburn arrives, Mr. Blackburn says that he felt that the vehicle had overheated and that the water was really low. He claims that Mr. Stobbe had boiled four gallons of water out of the truck and that he added water to the reservoir after the engine had cooled down somewhat.

I do not find frankly that that is credible. From all of the evidence, again which I will get to in a moment, there is absolutely no evidence that this truck was overheated as a result of boiling away the water. None of the damage that was caused as a result of this particular breakdown seems to be as a result of running without water and so that portion – maybe the water was low, I do not know, but that was not the cause of the problem with the crankshaft. [ 36 ] So in any event Mr. Blackburn does agree to have the vehicle towed back to the yard of the defendant company.

Once there, he is angry with the way things have taken place and the fact that his vehicle is now broken down. He blames the driver. [ 37 ] With respect to the manner in which the vehicle was driven by Mr. Stobbe, there is frankly no evidence on that other than from Mr. Stobbe and so I have no reason to disbelieve Mr. Stobbe. He seemed to be an experienced driver and he did what one would expect somebody to do. He gets in the vehicle, starts it up, and starts to drive it up the hill. He is driving at about 10 kilometres an hour.

There is no suggestion that he was speeding, or that he did something wrong, or that he drained the water, or that the water was steaming and boiling out of the vehicle. [ 38 ] In fact, Mr. Stobbe's evidence is there was absolutely no evidence of water lost, no evidence of overheating, no evidence of oil pressure problems, and he was driving the vehicle as far as he knew -- and therefore as far as I have to accept -- in a normal manner up the hill. He was acting like a reasonable person; there was nothing frankly improper in the driving.

The claimant cannot prove that or even allege that or even suggest it, and so in the manner that he drove the truck I find that he drove it properly. He was not negligent in the manner in which he drove the vehicle. [ 39 ] Mr. Blackburn ultimately takes the vehicle to G.T. Mechanical. G.T. Mechanical looks at the vehicle and there was a witness called by the claimant, not by the defendant, Mr. Eric Reich, who was sort of the head mechanic at G.T. Mechanical at the time. In May of 2012 when he examined the truck he had it towed to his yard to his building.

He confirmed what he said was the knocking issue so he ran the truck and confirmed that it was loudly knocking. He knew what that meant. He knew that the issue was in the lower part of the engine and he said so in his evidence. He looked for any signs of overheating and he said there were none. There was absolutely no indication that this vehicle had been overheated.

There was no paint peeling off by the engine, there was no signs of a gasket issue with the engine, no problem with the engine itself, the upper part of the engine, the pistons and things of that nature, and he believed all of the problem was in the crankshaft area. He removed the lower portion of the engine and found metal contamination in the oil, he found metal chunks in the oil pan, he dropped the bottom of the crankshaft and he could see that bearing number five had failed. [ 40 ] At that point, he advised Mr. Blackburn what the issue was.

He confirmed and everybody is pretty consistent here that the actual cure if you will for this sort of a problem in the crankshaft is replacing the crankshaft and all of the damaged parts and that that can cost $15,000 to $30,000. It is a very expensive operation but Mr. Blackburn who gave evidence that he could not have afforded that anyway, advised Mr. Reich to just patch it up, do the band aid repair as it has been called and he only paid somewhere between $1,200 and $1,600.

They put in a few bearings and polished up the crankshaft and slapped it back together, in effect a repair much like the one that had been done prior to the vehicle going into the auction it would appear by the invoice that was examined and is Exhibit 6 in these proceedings. That is an invoice from Pollard Equipment which shows basically the same kind of parts were put into this vehicle or at least sold to somebody, the previous owner of the vehicle, before the auction and it is reasonable to assume that if you spend that money on those parts, you are going to put them in the vehicle.

That would be a way to fix on a temporary basis the sort of loud knocking that was taking place and as a result the vehicle could be sold without the purchaser being able to immediately tell that there was a major problem with the crankshaft. [ 41 ] So Mr. Blackburn decided to do exactly the same thing to cut his losses. He repaired the vehicle, spent $1,200 or $1,300 with the intention of putting it back into the Ritchie Bros. auction and selling it.

He says that before he actually got it on the sale blocks at Ritchie Bros., when he took it to Ritchie Bros. there was a total failure again in the engine so this repair lasted a very, very short period of time. It would appear that both repairs, the one back in February of 2012 and the one in May of 2012, lasted a very short period of time before the crankshaft failure showed its ugly face again. [ 42 ] He takes the vehicle back into the auction and he claims he told Ritchie Bros. about it.

In any event, he gets about $15,000 on a re-sale of the vehicle as a result of which he claims for damages for the $11,978 he lost on the vehicle between what he paid for it and what he re-sold it for, plus the cost of repairs of about $1,100, plus $10,906 that he put into the vehicle for tires. He says his damages are in excess of $24,000 as a result and he seeks that amount including disbursements. [ 43 ] With respect to the history of the vehicle, the Court also had the benefit of hearing from Warren Roberts, a witness called by the defendant.

He was the owner of Pollard Equipment and he acknowledged that in February of 2012 he had actually sold these lower crankshaft parts to the owner who then put the vehicle up for sale in Ritchie Bros. He did not do the installation but he knows what the parts are for and he knew about this because in April of 2012 after the vehicle went back to the defendant's yard, Mr. Bassett called Mr. Roberts to come and have a look at the vehicle. Mr. Roberts recognized it as a vehicle that he had already looked at and given parts for and as a result he was able to pull the invoice on this unit, which he called Unit 108.

I gather that is a marking on the side of the truck. Sure enough, it was the same vehicle that he had sold parts for. [ 44 ] Mr. Roberts agreed that those parts installed in the vehicle in February or March of 2012 prior to the auction would be nothing

more than a patch job. It is certainly not a long term fix. The vehicle is going to break down again. The only question is how long will it last; will it be a mile or a thousand miles or ten thousand miles? He would not know that for sure, but he did know that it was going to break down again in a crankshaft failure which is exactly what happened. [ 45 ] It would appear that after that first repair the vehicle was taken to Ritchie Bros. probably as far as I know not driven after that repair, but I cannot speculate there. The only driving I know about is the driving that Mr.

Blackburn did in the yard of the defendant company and the running of the vehicle for about 20 minutes and then the driving of it by Mr. Stobbe for three-quarters of a kilometre. So overall this vehicle went a very short distance and did not last very many days from the original patch job before it broke down again on the forestry road on the way to kilometre 3.5. [ 46 ] The fact that this is a patch job kind of a repair is proven to be true again when Mr. Blackburn has Mr.

Reich repair the vehicle in a similar manner and it lasts a very, very short period of time and whether it was minutes or an hour or a mile or two, not very far and not very long before it breaks down again. Mr. Blackburn described that failure as sort of a catastrophic failure, but it would appear to be the same failure as before, namely, to the crankshaft. [ 47 ] There is no evidence anywhere in this case from any person who examined the vehicle that there was ever any damage to the vehicle or the engine other than the crankshaft.

The type of repairs that would be required and the damage that would be caused by running the vehicle, for example, without water or overheating it I am satisfied having heard the evidence from Mr. Roger Kelly who is an expert mechanic called by the defendant, that sort of overheating would not cause the damage to the crankshaft that in fact was evident in this particular vehicle and that the knocking is a result of lower end damage not upper end damage. That is my

summary of my findings of fact in this particular case. [ 48 ] When we start to get into the law and whether or not there is any claim here that the claimant can recover for, I look at whether or not the claimant has proven a contract. I have already commented on that. [ 49 ] I am satisfied that with respect to the parties involved and the issue of privity of contract that it would be reasonable to find that the claimant was a party to the contract indirectly by using Kal Tire as an agent to negotiate the low-bedding of the vehicle.

So I do not find particular merit in the defence argument that he did not have a contract and therefore had no right to sue. I find that he did have the right to sue as far as having a contract. [ 50 ] As far as the terms of the contract, I have already made my finding in that regard and that is that the claimant has failed to prove that there was a specific express or implied term of the oral contract that the vehicle would not be driven and that it would be low-bedded all the way to kilometre 3.5. [ 51 ] It may well be that that was Mr.

Blackburn's intention but that did not get expressed to the driver or at least in my view he had not proven on the balance of probabilities that that was the case. So I do not find that there was a breach of contract. [ 52 ] He can however still argue that the defendant and his driver were negligent in some way in the manner in which they carried out this transfer of the vehicle and if they are successful there, they could still obtain damages, if there are damages. [ 53 ] With respect to negligence, in my view it could be a breach of contract.

If I were to find that there was an express term in the contract that he had to drive the vehicle on the low-bed all the way to kilometre 3.5, then if he failed to do that, that would be a breach of contract. Because I cannot find that that is a term of the contract, there is no breach of contract. [ 54 ] Then the question becomes what was the negligent action, if any, of Mr. Stobbe, the driver, and his employer in the manner in which he did this. It would appear that he decided on his own to drive the vehicle up the hill.

There is some question about whether or not this was a public road and whether or not a licence plate was required. Most of the witnesses seemed to conclude that a licence plate really was not required although some liability insurance would be required to legally drive the vehicle on the forestry road but it would not make any difference really in this case whether he did it legally or illegally. The question is did he do it negligently and if he was in breach of some Motor Vehicle Act matter it would not affect or cause damage to the vehicle then it would be irrelevant in my opinion.

So nothing really turns on that. [ 55 ] As to the manner in which he drove the vehicle, there is absolutely no evidence that he drove it in a negligent manner. I find on all the evidence that the manner in which he drove the vehicle was reasonable, that he did not do something foolish or what a reasonable man would not do in the circumstances and that the mere act of driving the vehicle in my view is not negligent. You would have to show that a reasonable person would know or should know that by driving the vehicle that he was likely to cause some damage to it and there was no indication of that. [ 56 ] Even Mr.

Blackburn did not think that there was going to be damage caused. Yes, he wanted the opportunity to look at it again, but he did not have any reason to believe there was damage. In fact, it would appear from all of the expert evidence that there was really no way other than starting to rip apart the vehicle that he was even going to discover this damage to the crankshaft had it been unloaded properly at kilometre 3.5.

So in my view, there is no proof of negligence in the driving. [ 57 ] I do not have to go beyond that frankly because the only way the claimant can succeed here is if he proves either a breach of contract or negligence. In my view, the claimant has failed to prove either.

However, I am choosing to go one step further and that is to say that in this particular case even if he did breach a contract or a term of a contract or if he did drive the vehicle in some negligent fashion, in my view when you get to the issue of damages, there is no proof or evidence that he actually caused the damages. [ 58 ] The vehicle was an accident waiting to happen in the sense of falling apart. When it was purchased it was a very flawed vehicle. It was a vehicle that was waiting to break down. It had been hidden by the previous owner by making that band aid patchwork repair and not disclosed to Mr.

Blackburn. I would think that Mr. Blackburn has every reason to be angry at perhaps Ritchie Bros. and perhaps the previous owner for really concealing that damage and hiding it from him so that he could not discover and paying way more than the vehicle was worth because it had a damaged crankshaft that was waiting to fall apart.

[ 59 ] Had Mr. Stobbe delivered the vehicle to the site on a low-bed and the claimant had received the vehicle there and it was running fine when he got it, and had that occurred this crankshaft damage was still there, it was still in the vehicle, it was still going to fall apart within a very short period of time, which it did. [ 60 ] The only difference is that Mr. Blackburn would have been the driver at the time.

Had he done what he said he could have done and that is start to take the vehicle apart, maybe drop off the oil pan and look in the crankshaft, had he decided to do that before driving the vehicle, he may have discovered that there was an issue there but the only way to fix it is to spend the $15,000 or $20,000 to fix it. [ 61 ] So he bought a flawed vehicle, and he still would have had a flawed vehicle at the site at kilometre 3.5. He is no worse off from the fact that it broke on the way rather than at the site.

He would have had no alternative but to do one of two things: do another patchwork which he did, or spend the $15,000 to $20,000 that it would cost to repair it. He had no intention to do that and no ability to do that and no money to do that. [ 62 ] So all that would have happened is he may have done the patchwork repair again and it would have lasted for a couple of days and again he ends up with this broken down flawed vehicle that is not worth nearly what he paid for it. But that is not the fault of the person who delivered it. He had a flawed vehicle to start with.

He would have ended up with a flawed vehicle. Nothing that the defendant did caused the damage. [ 63 ] I absolutely accept the evidence of Roger Kelly, the expert mechanic, that this is not a vehicle that was damaged by driving with no (indiscernible) or something of that nature, and there is no evidence that there was ever any damage to this vehicle other than the crankshaft. [ 64 ] As a result, I find the claimant has failed to make out their case.

They have not proven breach of contract, they have not proven negligence and even if they had, there are no damages that are attributable to the actions of the defendant. [ 65 ] For all of those reasons, I dismiss the claim. The defendants are entitled to their reasonable disbursements and witness costs in this case. I will leave it to the parties to work that out. [ 66 ] MR. THORNTON: There were after the pre-trial conference earlier on this year, Judge Hoy gave the parties leave to exchange formal offers -– it was (indiscernible) 28 days. The parties did so –- [ 67 ] THE COURT: Okay. [ 68 ] MR.

THORNTON: -- and I'd like to bring the terms of the claimant's or the defendant's offer excuse me to your attention. Of course I didn't make a copy of the offer before I left my office but I can pass it up. I showed it to my friend obviously, and I should have checked it before I passed it up but I believe the sum is in the -– effectively $1,400.

It is my submission that the claimant - or the defendant, excuse me - in light of your findings today, should be awarded 20 percent of that difference as a result of making that offer to settle. [ 69 ] THE COURT: Okay, you are suggesting that, first of all, I have discretion – I may, I do not have to – but the 20 percent penalty you are suggesting should be 20 percent of what? [ 70 ] MR. THORNTON: Twenty percent – oh, excuse me, 20 percent of the amount of the offer to settle which I believe -– [ 71 ] THE COURT: It was $1,417? [ 72 ] MR. THORNTON: Yeah. [ 73 ] THE COURT: So roughly $280.00. [ 74 ] MR.

THORNTON: Correct. I believe that's in the Small Claims Rules. That's the maximum and obviously it is within Your Honour's discretion. [ 75 ] THE COURT: Okay. Submission? [ 76 ] MR. MULHOLLAND: Your Honour, I think there is a rule of general application that maximum penalties are that a discretionary range ought to be applied to the more egregious circumstances that the Court might encounter as opposed to a case where simply the Court chose to accept one witness's evidence over another and the consequences that flow from that.

So in my submission the Court can and ought to exercise a discretion not to give any effect to the formal offer and (indiscernible) if the Court is inclined to give effect to that offer, we would submit that a minimal amount ought to be awarded, particularly given that the defendant is to be compensated for their disbursements and witness costs. [ 77 ] THE COURT: Thank you. The offer to settle is a very valuable tool. It is contained in the Rules.

It has a purpose and that is to sort of put the party on notice who receives the offer but there are some consequences if you don't take what the offeror believes is a reasonable offer. The maximum that I can impose is 20 percent of that offer. In this particular case it is still a relatively small amount of money at $280.00.

I do not find that to be a lot of money when we are talking about a claim like this. [ 78 ] This is a claim, in my view, that I think is not just the fact that I failed to accept certain terms and conditions, because at least on my findings even if the claimant had proven either a breach of contract or negligence, they would not have been able to prove any damages because of the nature of the evidence that was available to them at the time. They knew that the vehicle had been previously repaired even though he did not know at the time he bought it.

He knew after the fact and before he brings a lawsuit that he bought a vehicle that had a damaged crankcase. He knew that that was what was wrong with it and he tried to fix it again and sell it in the auction again, so this was not a big surprise as some evidence that came out later.

[ 79 ] So I will award $280.00 by way of penalty as well as the other costs and disbursements. [ 80 ] MR. THORNTON : Thank you, Your Honour. [ 81 ] MR. MULHOLLAND : Thank you, Your Honour. [ 82 ] THE COURT : Thank you. We will adjourn. W.G. MACDONALD Provincial Court Judge